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Senate Democrats showed no mercy for California Supreme Court Justice Janice Rogers Brown Wednesday, pounding her with hostile questions about her record on affirmative action, abortion and other issues and accusing her of being an extremist with views far outside the mainstream. “Your record is that of a conservative judicial activist — plain and simple,” proclaimed Sen. Richard Durbin, D-Ill., during a bifurcated, three-hour confirmation hearing before the Senate Judiciary Committee. Even home-state Democratic Sen. Dianne Feinstein went for the jugular, calling Brown’s rulings and speeches “extraordinarily intemperate,” and accusing her of ignoring judicial precedents. “Your views are stark,” she said. “Is that the real you? Will that be you on the second most important federal court in the land?” The Democrats’ questions indicate that Brown, nominated to the D.C. Circuit U.S. Court of Appeals, could face a filibuster in the full Senate, if she even makes it out of the 19-member, Republican-controlled committee. There was also a hint that Brown may also have trouble with moderate Republicans. Sen. Arlen Specter, R-Pa., asked several pointed questions and bluntly told Brown that he didn’t know yet if he would vote for her. “I want to know what your real views are, and I want to listen to what you have to say,” Specter said. Judiciary Committee Chairman Orrin Hatch, R-Utah, started by urging that Brown be given more respect than he claims was given Miguel Estrada, a former nominee to the D.C. Circuit who dropped out after being filibustered for two years. “He was treated shamefully,” Hatch said. “It was a sad day for this institution.” If Hatch had any illusions, they were quickly shattered as one Democrat after another attacked Brown by reciting cases they say shows she has a conservative philosophy that’s out of step with the average American. “Justice Brown,” Durbin said, “in many of these cases, there were clear precedents you ignored.” They also accused her of having an anti-government bent that would make her a poor choice for a court that deals with many governmental issues, such as occupational safety and environmental laws. “How can anyone have confidence about how you’ll rule,” Sen. Edward Kennedy, D-Mass., asked, “when you’ve taken positions that have such a despicable attitude about what government and governmental institutions do?” Hatch rushed to Brown’s defense by going through a list of cases in which the justice had voted fairly liberally — cases involving the environment, the death penalty and police searches. “The overall point here,” he said, “is that your published opinions have fallen on both sides of public policy issues.” Brown, who remained calm and poised throughout the proceeding, also defended herself. “If my record is fairly evaluated,” Brown said, “no conclusion can be reached other than I’ve done the job I’m supposed to do. I’m not an ideologue of any persuasion.” She also refuted Kennedy’s claim that she is anti-government. “I don’t hate government. I am part of government,” she said. “I have been a government employee for 99 percent of my career. I understand that government can have a very positive role.” Brown’s speeches, as many observers had predicted, gave her critics lots of ammunition. One speech in particular — given to Chicago’s Federalist Society in 2000 — was especially troubling to Democrats. In that speech, Brown bashed government, belittled liberal thinking and seemed to indicate that New Deal politics caused a socialist revolution in America that undermined property rights in favor of civil rights. Sen. Durbin, who took the point in questioning Brown, said her take on the latter issue placed her in the unique position of endorsing Lochner v. New York, the 1905 Supreme Court ruling that critics contend improperly elevated property rights to the level of human rights. Even Robert Bork and Hatch criticize that now-discredited ruling, Durbin said. Brown responded by saying she did not endorse Lochner and that she was simply trying to “stir the pot a little and get people to think.” “Speeches,” she said, “are sometimes an opportunity to think out loud.” But Brown also defended her ideas, saying she thought the framers of the Constitution had concern for property rights as well as human rights. “In fact, the American Revolution was fought over property rights,” she told Durbin. “I think that the founders saw liberty and property rights as the same thing, as indivisible. If you do not have a roof over your head, your political rights are not going to be very meaningful.” The Republicans made the most of Brown’s background — a black woman raised in the segregated South who brought herself to the Supreme Court of the nation’s largest state by her own bootstraps. “She is personally all too familiar with the scourge of racism and bigotry,” Sen. John Cornyn, R-Texas, said while introducing Brown. Democrats didn’t take the bait, concentrating instead on rulings, including one high-profile case in which she tossed out San Jose’s minority outreach program as a violation of Proposition 209′s prohibition on preferential treatment. Durbin noted that she had “equated affirmative action to Jim Crow laws.” Hatch and his fellow Republicans also missed no opportunity to continually refer to an online cartoon with unsightly racial caricatures of Colin Powell, Condoleeza Rice and Clarence Thomas — with Brown featured as a female Thomas with bad hair. A blowup of the cartoon was put on an easel for all to see. Hatch called it a “vicious cartoon filled with bigotry” and appeared to be trying to associate it with the Democrats, many of whom blasted the cartoon as offensive. Brown said she had not planned an opening statement but changed her mind after seeing the cartoon. “I have dealt with bigotry and hatred my whole life,” she said, “and it was very hurtful to see this cartoon that was derogatory to a group of black people and was circulated by another group of black people.” Friends and acquaintances said they felt Brown more than accounted for herself. “I thought she handled herself well and was very responsive,” said Ninth Circuit U.S. Court of Appeals Judge Diarmuid O’Scannlain, who sat behind Brown at the hearing, “and told a wonderfully heartwarming story of her upbringing.” Arthur Scotland, presiding justice of Sacramento’s Third District Court of Appeal, said he thought the senators wrongly made a big deal out of Brown’s often-harshly worded dissents. “Let’s be honest,” he said. “Janice Rogers Brown is being opposed by some not on the basis of her qualifications, but because they perceive the strength of her intellect and the quality of her character as a threat to the implementation of their political views.” The senators didn’t indicate when they will vote. Jonathan Groner of Washington, D.C.- based Recorder affiliate Legal Times contributed to this story

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